Case 1:14-cv-00273-REB Document 18 Filed 10/29/14 Page 1 of 2

LAWRENCE G. WASDEN
ATTORNEY GENERAL
STEVEN L. OLSEN
Chief of Civil Litigation Division
W. SCOTT ZANZIG, ISB # 9361
CLAY R. SMITH, ISB# 6385
Deputy Attorneys General
Civil Litigation Division
Office of the Attorney General
954 W. Jefferson Street, 2nd Floor
P. O. Box 83720
Boise, ID 83720-0010
Telephone: (208) 334-2400
Fax: (208) 854-8073
scott.zanzig@ag.idaho.gov
clay.smith@ag.idaho.gov
Attorneys for Defendant David E. Brasuell
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MADELYNN LEE TAYLOR,

Plaintiff,
v.
DAVID E. BRASUELL, as Administrator of
the Idaho Division of Veterans Services, in
his official capacity,
Defendant.

)
) Case No. 1:14-cv-00273-REB
)
) DEFENDANTS MOTION TO DISMISS
)
)
)
)
)
)
)

Defendant, David E. Brasuell, moves to dismiss plaintiffs amended complaint without

prejudice under Federal Rule of Civil Procedure 12(b)(1). The Court lacks subject matter
///
///
///

DEFENDANTS MOTION TO DISMISS - 1

Case 1:14-cv-00273-REB Document 18 Filed 10/29/14 Page 2 of 2

jurisdiction because plaintiffs claim is moot. This motion is supported by the accompanying
memorandum and the declaration of James Earp.

Dated this 29th day of October, 2014.

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL

By:

/s/
W. SCOTT ZANZIG
Deputy Attorney General

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 29th day of October, 2014, I electronically filed the
foregoing Motion to Dismiss with the Clerk of the Court using the CM/ECF system which sent a
Notice of Electronic Filing to the following Persons:
Deborah A. Ferguson
d@fergusonlawmediation.com
Craig Harrison Durham
craig@chdlawoffice.com
Shannon P. Minter
sminter@nclrights.org
Christopher F. Stoll
cstoll@nclrights.org

/s/
W. SCOTT ZANZIG

DEFENDANTS MOTION TO DISMISS - 2

Case 1:14-cv-00273-REB Document 18-1 Filed 10/29/14 Page 1 of 6

LAWRENCE G. WASDEN
ATTORNEY GENERAL
STEVEN L. OLSEN
Chief of Civil Litigation Division
W. SCOTT ZANZIG, ISB # 9361
CLAY R. SMITH, ISB# 6385
Deputy Attorneys General
Civil Litigation Division
Office of the Attorney General
954 W. Jefferson Street, 2nd Floor
P. O. Box 83720
Boise, ID 83720-0010
Telephone: (208) 334-2400
Fax: (208) 854-8073
scott.zanzig@ag.idaho.gov
clay.smith@ag.idaho.gov
Attorneys for Defendant David E. Brasuell
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MADELYNN LEE TAYLOR,

Plaintiff,
v.
DAVID E. BRASUELL, as Administrator of
the Idaho Division of Veterans Services, in
his official capacity,
Defendant.

)
) Case No. 1:14-cv-00273-REB
)
) MEMORANDUM IN SUPPORT OF
) DEFENDANTS MOTION TO DISMISS
)
)
)
)
)
)

INTRODUCTION
This case is moot. Plaintiffs amended complaint seeks an injunction requiring
defendant, David E. Brasuell, to recognize plaintiffs same-sex marriage and permit the
remains of plaintiffs spouse to be interred at the Idaho State Veterans Cemetery. When
plaintiff originally filed this action, Idaho law prohibited recognition of same-sex
marriages. That law has now changed to permit recognition of plaintiffs marriage. As a
MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO DISMISS - 1

Case 1:14-cv-00273-REB Document 18-1 Filed 10/29/14 Page 2 of 6

result, the Idaho Division of Veterans Services has granted plaintiffs request for
interment of her spouses remains at the Idaho State Veterans Cemetery. Thus, plaintiff
has received all the relief requested in her complaint. Because there no longer exists any
case or controversy, the Court should dismiss this case without prejudice for lack of
subject matter jurisdiction.
BACKGROUND
Plaintiff, Madelynn Lee Taylor, is a veteran of the United States Navy. Ms.
Taylor married her same-sex partner, Jean Mixner, in California in 2008. Ms. Mixner
died in 2012.
Defendant, David E. Brasuell, is the Administrator of the Idaho Division of
Veterans Services (Veterans Services). Veterans Services manages the Idaho State
Veterans Cemetery.
In May 2014, Ms. Taylor requested that Veterans Services approve her application
to have her remains and Ms. Mixners remains interred at the Idaho State Veterans
Cemetery.1 On June 4, 2014, Veterans Services granted the application in part and
denied it in part. Veterans Services granted Ms. Taylors request to have her remains
interred at the Veterans Cemetery, but denied the request as to Ms. Mixners remains. In
its letter to Ms. Taylor, Veterans Services explained that veterans are permitted to have
their spouses interred at the Veterans Cemetery, but Idaho law prohibited recognition of
same-sex marriages. The letter also acknowledged that the validity of Idahos marriage
laws were the subject of ongoing legal proceedings (Latta v. Otter). Veterans Services
advised Ms. Taylor that if the Latta case changed the law regarding recognition of samesex marriages, Veterans Services would reconsider Ms. Taylors application:
///
///
1 Amended Complaint for Declaratory and Injunctive Relief (Amended Complaint), Exhibit C
(Dkt. 13-3).

MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO DISMISS - 2

Case 1:14-cv-00273-REB Document 18-1 Filed 10/29/14 Page 3 of 6

The outcome of such proceedings may directly affect the eligibility for
benefits of Ms. Mixner and alter our determination of your application as
indicated above as it relates to her. If that occurs, the cemetery will
reprocess your application for benefits as it relates to Ms. Mixner you
need not provide us with a new application at that time. As soon as any
legal proceedings involving that matter are finally and sufficiently
concluded, the Cemetery will notify you of any change in its decision a[s] it
relates to interment benefits for Ms. Mixner.2
Ms. Taylor apparently was unwilling to wait for the outcome in Latta. She filed
this lawsuit on July 7, 2014. She filed an amended complaint on September 11, 2014.
Dkt. 13.

The amended complaint seeks injunctive relief requiring Mr. Brasuell to

approve Ms. Taylors application to have Ms. Mixners remains interred at the Idaho
State Veterans Cemetery along with Ms. Taylors remains.
At the time of Veterans Services decision in June 2014, Idaho law prohibited
Veterans Services from recognizing Ms. Taylors marriage to Ms. Mixner. Article III,
section 28 of the Idaho Constitution provided that [a] marriage between a man and a
woman is the only domestic legal union that shall be valid or recognized in this state.
And Idaho Code 32-209 prohibited recognition of out-of-state same-sex marriages.
Although the United States District Court for the District of Idaho declared those laws
unconstitutional and enjoined their enforcement by its May 13, 2014 Memorandum
Decision and Order,3 the United States Court of Appeals for the Ninth Circuit entered an
Order on May 20, 2014, staying enforcement of the District Courts order pending
appeal.4
The Ninth Circuit recently took actions that changed Idahos marriage laws. On
October 7, 2014, the court issued an Opinion affirming the District Courts decision.5

2 Amended Complaint, Exhibit D (Dkt. 13-4).

3 Latta v. Otter, Case No. 1-13-cv-00482-CWD, Dkt. 98 (D. Idaho May 13, 2014).
4 Latta v. Otter, Nos. 14-35420 & 14-35421, Dkt. 11 (9th Cir. May 20, 2014).
5 Latta v. Otter, Nos. 14-35420, 14-35421, & 12-17668, 2014 WL 4977682 (9th Cir. Oct. 7,
2014).

MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO DISMISS - 3

Case 1:14-cv-00273-REB Document 18-1 Filed 10/29/14 Page 4 of 6

And on October 13, 2014, the Ninth Circuit issued an Order dissolving its stay of the
District Courts injunction, effective October 15, 2014.6 As a result, since October 15,
2014 same-sex marriages have been recognized in Idaho.
The Ninth Circuits order lifting the stay of the District Courts injunction in Latta
permitted Veterans Services to reconsider Ms. Taylors interment application for Ms.
Mixner. Veterans Services promptly made arrangements with Ms. Taylor to inter Ms.
Mixners remains at the Idaho State Veterans Cemetery. Declaration of James Earp,
dated October 28, 2014, 5. Ms. Mixners remains were interred at the Veterans
Cemetery on October 28, 2014. Id.
ARGUMENT
Article III of the Constitution limits the jurisdiction of the federal courts to live
cases and controversies. Kittel v. Thomas, 620 F.3d 949, 951 (9th Cir. 2010). Article
III requires that a live controversy persist throughout all stages of the litigation, not
merely at the time the complaint is filed. Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d
1125, 1128-29 (9th Cir. 2005) (en banc) (citing Steffel v. Thompson, 415 U.S. 452, 459
n.10 (1974)).

If a live controversy ceases to exist, the case becomes moot.

See

Gator.com, 398 F.3d at 1129. Mootness occurs where changes in the circumstances
that prevailed at the beginning of the litigation have forestalled any occasion for
meaningful relief. Id. (quoting West v. Secy of the Dept of Transp., 206 F.3d 920, 925
n.4 (9th Cir. 2000)). At that point, the court loses subject matter jurisdiction and should
dismiss the case. See Gator.com, 398 F.3d at 1129.
Because Ms. Taylor has received all the relief requested in her amended complaint
interment of Ms. Mixners remains at the Veterans Cemetery -- her case is now moot.7
6 Latta v. Otter, Nos. 14-35420 & 14-35421, Dkt. 196 (9th Cir. Oct. 13, 2014).
7 At the October 28, 2014 status conference, plaintiffs counsel made a surprising statement that
some controversy still exists because Ms. Taylor is uncertain whether she will be interred in the Veterans
Cemetery with her spouse. There is no factual basis for any alleged uncertainty. Veterans Services
granted Ms. Taylors interment request in June 2014. There has never been any question that she is

MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO DISMISS - 4

Case 1:14-cv-00273-REB Document 18-1 Filed 10/29/14 Page 5 of 6

This case is strikingly similar to Kittel v. Thomas, where the Ninth Circuits decision in a
different case provided the plaintiff all the relief he requested. Kittel filed a habeas
petition challenging a Bureau of Prisons rule. The rule prohibited early release for
prisoners, like Kittel, whose convictions involved a weapon. While Kittels action was
pending, the Ninth Circuit decided a similar case invalidating the rule Kittel was
challenging. Due to the Ninth Circuits invalidation of the rule, the Bureau of Prisons
granted Kittel early release. The district court dismissed Kittels case as moot, and the
Ninth Circuit affirmed.
Like Kittel, Ms. Taylor is the beneficiary of the Ninth Circuits decision in a
different case, Latta v. Otter. The Ninth Circuits decisions in Latta have mooted Ms.
Taylors case. Accordingly, this Court should dismiss this case for lack of subject matter
jurisdiction.
CONCLUSION
For all the foregoing reasons, defendant, David E. Brasuell, respectfully requests
that the Court enter an order dismissing plaintiffs amended complaint without prejudice.

Dated this 29th day of October, 2014.

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL

By:

/s/
W. SCOTT ZANZIG
Deputy Attorney General

entitled to be buried at the cemetery. The only issue was whether Idaho law permitted her same-sex
spouse to be interred at the cemetery.

MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO DISMISS - 5

Case 1:14-cv-00273-REB Document 18-1 Filed 10/29/14 Page 6 of 6

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 29th day of October, 2014, I electronically filed the
foregoing Memorandum in Support of Defendants Motion to Dismiss with the Clerk of the
Court using the CM/ECF system which sent a Notice of Electronic Filing to the following
Persons:
Deborah A. Ferguson
d@fergusonlawmediation.com
Craig Harrison Durham
craig@chdlawoffice.com
Shannon P. Minter
sminter@nclrights.org
Christopher F. Stoll
cstoll@nclrights.org

/s/
W. SCOTT ZANZIG

MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO DISMISS - 6

Case 1:14-cv-00273-REB Document 18-2 Filed 10/29/14 Page 1 of 4

LAWRENCE G. WASDEN
ATTORNEY GENERAL
STEVEN L. OLSEN
Chief of Civil Litigation Division
W. SCOTT ZANZIG, ISB # 9361
CLAY R. SMITH, ISB# 6385
Deputy Attorneys General
Civil Litigation Division
Office of the Attorney General
954 W. Jefferson Street, 2nd Floor
P. O. Box 83720
Boise, ID 83720-0010
Telephone: (208) 334-2400
Fax: (208) 854-8073
scott.zanzig@ag.idaho.gov
clay.smith@ag.idaho.gov
Attorneys for Defendant David E. Brasuell
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MADELYNN LEE TAYLOR,

Plaintiff,
v.
DAVID E. BRASUELL, as Administrator of
the Idaho Division of Veterans Services, in
his official capacity,
Defendant.

)
) Case No. 1:14-cv-00273-REB
)
) DECLARATION OF JAMES EARP
)
)
)
)
)
)
)

Pursuant to Idaho Code 9-1406, I, JAMES EARP, declare the following to be true
and correct under penalty of perjury according to the law of the State of Idaho:
1.

I am the Administrator of the Idaho State Veterans Cemetery. I make this

declaration based upon my own personal knowledge.

///
DECLARATION OF JAMES EARP - 1

Case 1:14-cv-00273-REB Document 18-2 Filed 10/29/14 Page 2 of 4

2.

In May 2014, Madelynn Lee Taylor requested that Veterans Services

approve her application to have her remains and the remains of her deceased same-sex
spouse, Jean Mixner, interred at the Idaho State Veterans Cemetery.
3.

On June 4, 2014, Veterans Services granted the application in part and

denied it in part. Veterans Services granted Ms. Taylors request to have her remains
interred at the Veterans Cemetery, but denied the request as to Ms. Mixners remains. I
sent Ms. Taylor a letter explaining the decision. A copy of the letter is attached as
Exhibit A.
4.

As I explained in my letter to Ms. Taylor, veterans are permitted to have

their spouses interred at the Veterans Cemetery, but Idaho law prohibited recognition of
same-sex marriages at that time. My letter also acknowledged that the validity of Idahos
marriage laws were the subject of ongoing legal proceedings. I advised Ms. Taylor that if
the Latta v. Otter case changed the law regarding recognition of same-sex marriages,
Veterans Services would reconsider Ms. Taylors application as it related to Ms. Mixner.
5.

Idahos marriage laws recently changed as a result of developments in the

Latta v. Otter case. This permitted Veterans Services to reconsider Ms. Taylors
interment application for Ms. Mixner. Veterans Services promptly made arrangements
with Ms. Taylor to inter Ms. Mixners remains at the Idaho State Veterans Cemetery.
Ms. Mixners remains were interred at the Veterans Cemetery on October 28, 2014.
6.

Now that Ms. Taylors spouse is interred in our cemetery, Ms. Taylor has

executed her earned VA benefit for interment in a veterans cemetery. That benefit
///
DECLARATION OF JAMES EARP - 2

Case 1:14-cv-00273-REB Document 18-2 Filed 10/29/14 Page 3 of 4

Case 1:14-cv-00273-REB Document 18-2 Filed 10/29/14 Page 4 of 4

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 29th day of October 2014, I electronically filed the
foregoing declaration with the Clerk of the Court using the CM/ECF system which sent a Notice
of Electronic Filing to the following persons:
Deborah A. Ferguson
d@fergusonlawmediation.com
Craig Harrison Durham
craig@chdlawoffice.com
Shannon P. Minter
sminter@nclrights.org
Christopher F. Stoll
cstoll@nclrights.org

/s/
W. SCOTT ZANZIG

DECLARATION OF JAMES EARP - 4

Case 1:14-cv-00273-REB Document 18-3 Filed 10/29/14 Page 1 of 2

EXHIBIT A
Page 1 of 2

Case 1:14-cv-00273-REB Document 18-3 Filed 10/29/14 Page 2 of 2

EXHIBIT A
Page 2 of 2